Citation Nr: 1336708
Decision Date: 11/12/13 Archive Date: 11/22/13
DOCKET NO. 13-01 411 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut
THE ISSUES
1. Entitlement to service connection for a dental disorder, to include the removal of teeth 8 and 9 (front teeth), for purposes of compensation.
2. Entitlement to service connection for a dental disorder, to include the removal of teeth 8 and 9 (front teeth), for purposes of VA outpatient dental treatment.
REPRESENTATION
Appellant represented by: Connecticut Department of Veterans Affairs
ATTORNEY FOR THE BOARD
B. Rideout, Associate Counsel
INTRODUCTION
The Veteran had active duty service from August 2004 to April 2005. He also had subsequent Reserve service.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision from the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. In that decision, the RO denied entitlement to service connection for dental condition to include removal of front teeth, for purposes of compensation.
The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.
In addition, in February 2013, the Veteran submitted a January 2013 letter from Dr. M.T. to the Board, after issuance of the December 2012 statement of the case and prior after notification of certification of the appeal. The Board referred the evidence to the RO. Generally, when the RO receives evidence after issuance of the statement of the case but prior to certification of the appeal to the Board, it is required to issue a supplemental statement of the case. 38 C.F.R. §§ 19.31(b)(1), 19.37(a) (2013). It need not do so, however, if the evidence is not pertinent or relevant to the issue on appeal. Dr. M.T.'s letter indicates that the Veteran's current dental condition was affected by the treatment he received in service, and that completion that restorative treatment begun in service is recommended. However, as noted below, the Board is denying the claim for service connection for a dental disorder for purposes of compensation because such compensation is only warranted in certain circumstances not present here. As discussed in more detail below, Dr. M.T.'s letter, and any associated records, would not be relevant to this issue. Therefore, this evidence is not pertinent and a remand to the RO for review of this evidence is not required.
The issue of entitlement to service connection for a dental disorder, to include the removal of teeth 8 and 9 (front teeth), for purposes of VA outpatient dental treatment, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDING OF FACT
There is no evidence that the removal of the Veteran's front teeth occurred due to trauma or disease such as osteomyelitis, osteoradionecrosis, loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or loss of substance of the maxilla (upper jaw bone) or mandible (lower jaw bone).
CONCLUSION OF LAW
The criteria for service connection for a dental disorder, to include the removal of teeth 8 and 9, for purposes of compensation, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.381, 4.150 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to notify and assist
As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In this case, VA's duty to notify was satisfied by way of a letter sent to the Veteran in May 2012 that fully addressed all notice elements.
VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records, and also providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the Veteran's service treatment records are associated with the claims file. There is a letter in the claims file from Dr. M.T., which indicates that he has treated the Veteran since 1989. Dr. M.T.'s treatment records relating to the Veteran have not been associated with the claims file. VA was not required to obtain these records in connection with the claim on appeal herein, however, because they are not relevant to the determination being made. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). As indicated below, the Veteran's claim for service connection for a dental disorder for purposes of compensation must be denied as a matter of law because such compensation is warranted only in certain circumstances, such as when it is due to trauma or disease such as osteomyelitis, osteoradionecrosis, loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or loss of substance of the maxilla or mandible. None of Dr. M.T.'s records are relevant to this determination and they therefore did not need to be obtained in connection with the claim being decided herein. To the extent these records are relevant, they are relevant to the Veteran's claim for service connection for purposes of VA outpatient treatment, which is being addressed in the remand portion of this decision.
The Veteran was afforded a VA examination in August 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the August 2012 examiner reviewed the Veteran's claims file and opined that the Veteran's dental disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in service injury, event, or illness. Review of the October 2003 enlistment examination reveals that the Veteran's tooth problems were not "noted" at that examination for purposes of VA law. As such, the presumption of soundness did apply and the August 2012 examiner addressed the relevant questions to enable the Board to determine whether the presumption had been rebutted. The examiner also provided a rationale for his opinion. The Board therefore finds that this examination was adequate.
Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion regarding the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4).
Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim being decided herein.
II. Law and Regulations
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, to prove service connection, the record must contain: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Significantly, however, pursuant to VA laws and regulations, compensation is only available for certain types of dental and oral conditions, such as when it is due to trauma or disease such as osteomyelitis, osteoradionecrosis, loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or loss of substance of the maxilla (upper jaw bone) or mandible (lower jaw bone).
See 38 C.F.R. § 4.150. Otherwise, such loss is not considered disabling. In a precedent opinion, VA General Counsel held that dental treatment of teeth during service, to include extractions, does not constitute dental trauma. See VAOPGCPREC 5-97 (1997), 62 Fed.Reg. 15, 566 (1997).
Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service connected solely for the purpose of establishing eligibility for outpatient dental treatment and cannot be considered for compensation purposes. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381, 4.150.
III. Analysis
The Veteran has brought a claim for benefits regarding the removal of his 2 front teeth while at basic training for the U.S. Marine Corps. After a review of the claims file, the Board finds that the evidence shows that the Veteran is not entitled to compensation for the removal of his front teeth while in service.
The Veteran's service treatment records indicate that the Veteran reported a history of severe tooth trouble at his entrance examination in October 2003. Therefore, the first question the Board will address is whether the Veteran's tooth trouble existed prior to service, as additional laws and regulations apply when there is evidence that a disability preexisted service.
Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The term "noted" in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this case, while the Veteran's severe tooth trouble is listed in the Veteran's medical history, it is not noted in the examination itself. Thus, the Veteran is presumed to have been sound with regard to his dental disorder at entry into service because of the lack of defect, infirmity, or disorder noted in the October 2003 enlistment examination report.
To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003).
In this case, the Veteran has made multiple statements indicating that his dental disorder preexisted service. As above, he noted that he had severe tooth trouble at his entrance examination in October 2003. At that examination the Veteran reported that he injured his mouth in a car accident at the age of 10 and then had an infection of the mouth at the age of 12. Another medical history report indicates that the Veteran fractured his jaw at age 10. In August 2004 the Veteran was seen by a dentist while in service and his front teeth (tooth numbers 8 and 9) were noted to have "failed" and a "hopeless prognosis" was given. The dentist then requested that the Veteran be evaluated for prosthesis prior to extracting the teeth. In December 2008 the Veteran presented to a VA dentist and reported that his front teeth had been knocked out and replaced at age 10. In August 2010 the Veteran again presented to a VA dentist for ongoing difficulties with his teeth and reported that his front teeth were knocked out in a car accident and replaced by a private dentist. He also reported that these teeth were removed during boot camp due to decay. Based on the above, the Board finds that the evidence clearly and unmistakably shows that the Veteran's dental disorder preexisted service. The Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The event which caused the Veteran's tooth problems and the treatment he received thereafter is a subject that the Veteran is competent to testify about. Furthermore, the Veteran has consistently reported that he had trouble with his teeth prior to service due to a car accident at age 10. The Board finds that this consistent testimony establishes that the Veteran's tooth problems clearly and unmistakably preexisted service.
The next question the Board will address is whether the Veteran's dental disorder was clearly and unmistakably not aggravated by service. The Veteran was afforded a VA examination in connection with his claim in August 2012. After reviewing the claims file, the examiner opined that the claimed dental disorder was clearly and unmistakably not aggravated beyond its natural progression by an in service injury, event, or illness. In his rationale, the examiner explained that he agreed with the Veteran's in service dental assessment in August 2004 in that the Veteran's prior root canal treatment for his front teeth had failed and that these teeth were not restorable and needed to be extracted. The Board finds the August 2012 VA examination to be adequate in that the Veteran's claims file was reviewed and a rationale was provided for the examiner's opinions. Additionally, there is no evidence of record which disputes these findings. As noted above, Dr. M.T.'s letter does not address the question of whether the Veteran's tooth problems preexisted service or were aggravated thereby.
The Board therefore finds that the Veteran's dental disorder clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. The presumption of soundness has therefore been rebutted. As the above evidence and analysis also shows that a preexisting dental disorder was not aggravated by service, entitlement to service connection for a preexisting dental disorder is not warranted.
In any event, the Veteran's claim for service connection for compensation must be denied as a matter of law. The Veteran had tooth numbers 8 and 9 extracted during boot camp, after they were given a prognosis of hopeless. As indicated above, missing teeth may be service connected for compensation purposes only in limited circumstances, such as when the loss is due to trauma or disease such as osteomyelitis, osteoradionecrosis, loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or loss of substance of the maxilla (upper jaw bone) or mandible (lower jaw bone). This scenario is not demonstrated in the instant case. Service treatment records reflect that teeth 8 and 9 were extracted due to failed root canals and not from osteomyelitis, osteoradionecrosis, loss, malunion, or limited motion of the mandible, maxilla, ramus, condyloid process, or hard palate, or loss of substance of the upper or lower jaw. See id. There is also no evidence or allegation of any dental trauma or any of the disabilities specified in 38 C.F.R. § 4.150. Entitlement to service connection for a dental disorder for purposes of compensation must therefore be denied as a matter of law. Sabonis v. Brown, 6 Vet.App. 426 (1994).
ORDER
Entitlement to service connection for a dental disorder, to include the removal of teeth 8 and 9 (front teeth), for purposes of compensation, is denied.
REMAND
The Board must address all issues reasonably raised by a liberal reading of the record; consistent with this principle, a claim for service connection for a dental disability for purposes of compensation must also be considered to be a claim for service connection for a dental disability for purposes of VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 305-306 (1993). Moreover, in this case it appears that the primary relief sought by the Veteran in this case is treatment rather than compensation, as indicated by the statement in his June 2012 statement in support of claim (VA Form 21-4138), "I want . . . my old smile back."
The regulation relating to service connection of dental conditions for treatment purposes was amended, effective February 29, 2012, in order to clarify existing regulatory provisions and to reflect the respective responsibilities of the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA) in determinations concerning eligibility for dental treatment. See Proposed Rules, Dental Conditions, 76 Fed. Reg. 14,600 (Mar. 17, 2011); Final Rule, Dental Conditions, 77 Fed. Reg. 4469 (Jan. 30, 2012). The amended version of 38 C.F.R. § 3.381 clarifies that VBA will adjudicate a claim for service connection of a dental condition for treatment purposes after VHA determines that a veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests that VBA make a determination on relevant questions. 38 C.F.R. § 3.381(a). In this case, the RO explicitly adjudicated, and denied, the claim for entitlement to service connection for a dental disability for purposes of compensation, but did not explicitly address, or refer, the claim for entitlement to service connection for a dental disability for purposes of VA outpatient treatment purposes.
Although the RO did not explicitly adjudicate the claim for service connection for a dental disability for purposes of VA outpatient dental treatment, the Board finds that remand, rather than referral, is appropriate here. A remand with instructions to the RO to refer the claim to the VHA, which the regulation provides must make the initial determination on the claim, will better ensure that the claim is addressed promptly and efficiently and is therefore consistent with the uniquely pro-claimant principles underlying the veterans' benefits system. Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013). See also See Young (William) v. Shinseki, 25 Vet. App. 201, 204 (2012) ("when a claim (or a part or theory in support of a claim) erroneously is referred instead of remanded, a claimant loses his statutory right to expedited consideration absent Court correction").
Accordingly, the claim for entitlement to service connection for a dental disorder, to include the removal of teeth 8 and 9 (front teeth), for purposes of VA outpatient dental treatment, is REMANDED for the following action:
1. Refer the claim for entitlement to service connection for a dental disorder, to include the removal of teeth 8 and 9 (front teeth), for purposes of VA outpatient dental treatment, to the appropriate VA Medical Center (VAMC) to determine if the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161.
2. If the VAMC determines that the Veteran meets the basic eligibility requirements of 38 C.F.R. § 17.161 and requests VBA make a determination, adjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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J. HAGER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs